England and Wales: is it time to split the legal system?

Robin Tilbrook suggests that there would be positive consequences for the legal system if there was to be a separate Welsh legal jurisdiction

March 6, 2017March 3, 2017

There are now beginning to be moves afoot to split the unitary “jurisdiction” of England and Wales into two separate national jurisdictions.

In many ways such a split is not as radical a move as it might seem, bearing in mind that there are already separate jurisdictions in Scotland; in Northern Ireland; in the Isle of Man and in the Channel Isles with different Judges, procedures and often different substantive legal rules. Separate jurisdictions do not necessarily cause much practical difficulty in dealing with either civil matters or criminal matters. What it does however mean is that there would be separate legal professions.

The jurisdictions of Canada, Australia, New Zealand and quite a few others of the old Empire/Commonwealth are similar too. There are also often less differences between their legal systems and the English/Welsh legal system than there is with the Roman Law based jurisdiction in Scotland.

It is more difficult to deal with continental European systems since they are not based on Common Law principles but rather on civil law codes deriving from Roman Law, with substantively different legal rules and often dramatically different legal procedures!

My interest in the splitting of the current unitary jurisdiction of “England and Wales” into two national ones was first raised by a discussion that I had some months ago with a senior Welsh Judge who said that he wants to see a split. Increasingly the Welsh Parliament/Senedd are legislating for Wales in a way that is different than the legislation for England. There will therefore come a time very soon when it no longer makes sense to have a single jurisdiction.

Then, just before Christmas, the Law Society Gazette published an article looking at the implications of a separate legal jurisdiction for England and Wales.

Putting my hat on as Chairman of the English Democrats rather than as a solicitor, I would welcome separation of the jurisdictions as being an important step in the direction of independence between our two Nations. In our modern world there is no reason why our two separate Nations should be constrained into the same grossly expensive and inefficient, grandiose and extravagant UK State.

If I were a Welsh solicitor or barrister I would be optimistic about the prospects of a successful separate Welsh Jurisdiction. As long as the Welsh Government could be persuaded to reduce the currently absolutely ridiculous level of court fees, by which the British Government has been exploiting litigants in the “England and Wales” jurisdiction there would be real benefits.

The Welsh Government would then have the right to run its own Legal Aid scheme. This could be more like the successful Scottish one and less like the unfair disaster that the UK Government has created.

It should also be pointed out that the Welsh Government ought to want to take-over the judicial appointments system, which in England and Wales is currently very politicised.

Judges here are currently appointed and promoted by the Judicial Appointments Commission. The JAC was set up by Lord Derry Irvine when he was Tony Blair’s Lord Chancellor, which he publicly boasted would prevent the appointment or promotion of “those with reactionary views”. Despite your views, what cannot be denied here is that this is an expressly political criterion for the appointment of Judges. It is wholly inappropriate to getting the best lawyers appointed as Judges. It is also contrary to providing the best service to those who use the court system.

Far from being a problem the separate jurisdictions could make the Welsh jurisdiction very attractive and might lead to many businesses having a Welsh-only legal jurisdiction clause in commercial contracts since there would be less expense and less delay and even perhaps a better selection of Welsh Judges.

From an economic point of view the current arrangements are clearly not working very well for Welsh lawyers as it appears that fees in Wales are dramatically lower than those in England.

A separate and overhauled and sensibly rationalised Welsh legal system could well be much more competitive with the English jurisdiction and provide a boost not only to Welsh lawyers but also to the Welsh economy.

As the Gazette article quotes from Barrister David Hughes, “The buildings are all here (in Wales), the judges are all here. More is spent per head in England… At the moment Wales is not gaining [in terms of] access to justice. SMEs in Wales are subsidising multi-million-pound litigation between oligarchs in London. That does nothing for the community in Wales – the fees are not coming back.”

As Hughes suggested, a legally independent Wales would be able to do ‘imaginative’ things to enhance access, such as introduce a contingency legal aid fund. ‘Wales would not be a particularly small common law jurisdiction. If it were a US state, 20 [states] would be smaller,’ states in the article.

As both an English Solicitor and also as the Chairman of the English Democrats, I welcome these moves towards a separate legal jurisdiction for Wales.

Robin Tilbrook is an English Solicitor and the Chairman of the English Democrats

3 thoughts on “England and Wales: is it time to split the legal system?”

More devolution and more powers for the Assembly is nothing new and is especially vocal in the privileged 10% Welsh speaking minority circles representing the Welsh nationalism at its worst and most often totally divorced from the realms of the reality.

The fact that there is no benefit of a separate legal jurisdiction for Wales other than the cost and huge implications is hardly ever addressed in the Welsh media.

We should take heed from David Jones MP when as the Secretary of State for Wales a few years ago he said the following:

Firstly, there is a single, unified legal jurisdiction between the 2 countries. A jurisdiction that has evolved for over some five hundred years to meet the changing circumstances of society in England and Wales.

Let me say directly that I believe the unified jurisdiction is hugely beneficial to Wales.

Unlike some in Wales, I do not believe that the Assembly’s recently-acquired powers to create primary legislation warrant the establishment of a separate Welsh jurisdiction.

Indeed, as a lawyer, albeit one who no longer practises, I consider that there would be significant practical disadvantages to a separate Welsh legal jurisdiction.

There are, for example, issues of scale. In terms of the judiciary, the limited number of serious and complex cases, which currently are usually dealt with by the High Court or Court of Appeal in Wales, would mean only a handful of judges hearing these types of cases, with an obvious impact on the range of experience available for exclusively Welsh judges.

The benefits of interaction and insight gained by judges working across circuit boundaries, or through participation in common training, would be diminished, and the relative lack of opportunities to gain experience and develop careers would risk Wales losing judiciary of higher calibre to England.

Similarly, Welsh litigants at present have access to a large, strong and diverse England and Wales Bar, with a wide range of specialisms. Splitting the jurisdiction would significantly diminish that access.

The argument has been put forward, by some in the Welsh government and others, that a growing statute book of Welsh laws makes it inevitable a separate Welsh jurisdiction will need to be established at some point in the near future. But the current and foreseeable Welsh statute book is miniscule compared to the centuries of legislation that applies to Wales, both statute and judge-made. And it is likely to remain relatively small long into the future, no matter what the pace of law-making in Cardiff Bay.

In any case, lawyers practising in England and Wales are perfectly used to interpreting laws founded on common approaches to statutory constructs and judicial precedents and the time when the volume of Welsh laws poses a problem in terms of their ability to do so effectively is, I would argue, well in the distant future.

There are also issues of cost. Upwards of £105 million per annum to replicate many of the cross-border justice structures that already exist, including over £80 million to build and run the additional prisons that would be required.

So, I conclude that there are much better arguments against a single Welsh legal jurisdiction than there are in favour, and l see little prospect of that changing, even over the medium to long term.

Importance of England to the Welsh economy and vice versa
The second way in which Wales is closely linked with England is economic. England is Wales’s biggest trading partner, and strong trading links across the border are central to the Welsh economy. As I mentioned earlier, most of the principal routes run east to west.

Wales benefits hugely from its proximity to England, and to its large urban centres in cities such as Bristol, Birmingham, Liverpool and Manchester. Every day, thousands of Welsh and English workers cross the border to their places of work. In areas such as the Mersey-Dee subregion, large employers on both sides of the border attract many employees from the other side. Over 80,000 Welsh residents work outside Wales and over 50,000 people who live outside Wales come here to work.

More widely, Wales, like Scotland, benefits from being part of an internal UK market of over 60 million people and from the trade and investment opportunities delivered through the strong UK-brand.

Cross-border issues

The third way in which Wales is entwined with England is in terms of personal and institutional interactions across the border. There are many cross-border institutions; some represent Wales and England as a whole, including professional bodies such as the Institute of Chartered Accountants in England and Wales, and others represent more closely defined cross-border areas, such as the West Cheshire and North Wales Chamber of Commerce or the Shropshire and Mid-Wales Insurance Institute.

48% of people in Wales live within 25 miles of the English border and 90 percent live within 50 miles. People move across that border on a daily basis for work, hospital treatment, education and leisure: For them, the border is no more than a line on a map; it has no relevance to their daily lives.

So the relationship between Wales and England is deeply intertwined. The devolution settlement for Wales reflects this unique relationship, and it is right that it does so.

It is for the good of Wales, the good of England and the good of the United Kingdom as a whole.”

Come on “Glasnost” (openness) what’s your name?
I am currently practising as a barrister and can use Welsh in Court.

Here we go, Glasnots, point by point, well, some of them:
“An English Lawyer with an agenda but for whose benefit?”
Oh dear, fellow Welshman does not face the logic or the evidence, but prefers to look for a suspected underhand motive. Please can we Welsh stop doing this?

“More devolution and more powers for the Assembly is nothing new and is especially vocal in the privileged 10% Welsh speaking minority circles representing the Welsh nationalism at its worst and most often totally divorced from the realms of the reality”.
I am not divorced from reality. Nationalism has not been based on the Welsh Language since the 1960s when the Cymdeithas yr Iaith was hived off to deal with this very objection.

“Arguments of David Jones MP: Firstly, there is a single, unified legal jurisdiction between the 2 countries. A jurisdiction that has evolved for over some five hundred years to meet the changing circumstances of society in England and Wales.”
Historical fact but not an argument. The changing circumstances of Wales now include a large amount of Wales-only law and economic divergence from England, well, London.

“Significant practical disadvantages to a separate Welsh legal jurisdiction. There are, for example, issues of scale. In terms of the judiciary, the limited number of serious and complex cases, which currently are usually dealt with by the High Court or Court of Appeal in Wales, would mean only a handful of judges hearing these types of cases, with an obvious impact on the range of experience available for exclusively Welsh judges.
“The benefits of interaction and insight gained by judges working across circuit boundaries, or through participation in common training, would be diminished, and the relative lack of opportunities to gain experience and develop careers would risk Wales losing judiciary of higher calibre to England.”
The US has 50 separate State jurisdictions each handling a wider range of law than is yet the case in Wales. Wales is bigger than half the 50, all of whom have functioning Courts, Supreme Courts etc. All seems to work. As jurisdictions go, England is freakishly large. Getting judicial experience and diversity in smaller jurisdictions happens all the time. As with a Welsh Army, if one existed, the officers would probably go through Sandhurst anyway, and would hop between England and Wales and the rest of the world. Wales produces lots of good judges – you should have seen the line-up in Bangor at the Legal Wales Conference last October!

“Similarly, Welsh litigants at present have access to a large, strong and diverse England and Wales Bar, with a wide range of specialisms. Splitting the jurisdiction would significantly diminish that access.”
As for judges, so for barristers. We all work in both England and Wales.

“The argument has been put forward, by some in the Welsh government and others, that a growing statute book of Welsh laws makes it inevitable a separate Welsh jurisdiction will need to be established at some point in the near future. But the current and foreseeable Welsh statute book is miniscule compared to the centuries of legislation that applies to Wales, both statute and judge-made. And it is likely to remain relatively small long into the future, no matter what the pace of law-making in Cardiff Bay.”
These actually working in the field are grappling with the true fact that Welsh law is NOT “miniscule”. The call has gone out to lawyers to compile Welsh lawbooks. Another call has gone out to make Welsh laws accessible. (You would not believe the panic this causes. The Glasnosts in Wales seem prefer to keep Welsh law hidden away. Wonder why?)

“In any case, lawyers practising in England and Wales are perfectly used to interpreting laws founded on common approaches to statutory constructs and judicial precedents and the time when the volume of Welsh laws poses a problem in terms of their ability to do so effectively is, I would argue, well in the distant future.”
No, Glasnost, it’s on the doorstep.

“There are also issues of cost. Upwards of £105 million per annum to replicate many of the cross-border justice structures that already exist, including over £80 million to build and run the additional prisons that would be required.”
No, the English Democrat, all credit to him, is right and you are wrong. There is no replication, courts or prisons. The only cost is to move some HM Courts Service bureaucrats to Wales, and fund an online library of Welsh laws. (There used to be one not long ago – can you believe it, they stopped funding it! Hide Welsh law, you don’t know where it will lead?)

“More widely, Wales, like Scotland, benefits from being part of an internal UK market of over 60 million people and from the trade and investment opportunities delivered through the strong UK-brand.”
The UK brand is bust. One of my grandparents was English and I yield to none in my affection for cricket and Shakespeare and the decency of the English – as English Democrat clearly embodies. But some misguided English want us out of the 500 million strong EU trading block, the biggest and best in the world – along with some seriously anti-reality Welsh. Ties with and dependence on England do not allow Wales to flower.

Come on “Glasnost” (openness) what’s your name?
I am currently practising as a barrister and can use Welsh in Court.
Here we go, Glasnost, point by point, well, some of them:
“An English Lawyer with an agenda but for whose benefit?”
Oh dear, fellow Welshman does not face the logic or the evidence, but prefers to look for a suspected underhand motive. Please can we Welsh stop doing this?
“More devolution and more powers for the Assembly is nothing new and is especially vocal in the privileged 10% Welsh speaking minority circles representing the Welsh nationalism at its worst and most often totally divorced from the realms of the reality.”
I am not divorced from reality. Nationalism has not been based on the Welsh Language since the 1960s when the Cymdeithas yr Iaith was hived off to deal with this very objection.
“Arguments of David Jones MP: Firstly, there is a single, unified legal jurisdiction between the 2 countries. A jurisdiction that has evolved for over some five hundred years to meet the changing circumstances of society in England and Wales.”
Historical fact but not an argument. The changing circumstances of Wales now include a large amount of Wales-only law and economic divergence from England, well, London.
“Significant practical disadvantages to a separate Welsh legal jurisdiction. There are, for example, issues of scale. In terms of the judiciary, the limited number of serious and complex cases, which currently are usually dealt with by the High Court or Court of Appeal in Wales, would mean only a handful of judges hearing these types of cases, with an obvious impact on the range of experience available for exclusively Welsh judges.
“The benefits of interaction and insight gained by judges working across circuit boundaries, or through participation in common training, would be diminished, and the relative lack of opportunities to gain experience and develop careers would risk Wales losing judiciary of higher calibre to England.”
The US has 50 separate State jurisdictions each handling a wider range of law than is yet the case in Wales. Wales is bigger than half the 50, all of whom have functioning Courts, Supreme Courts etc. All seems to work. As jurisdictions go, England is freakishly large. Getting judicial experience and diversity in smaller jurisdictions happens all the time. As with a Welsh Army, if one existed, the officers would probably go through Sandhurst anyway, and would hop between England and Wales and the rest of the world. Wales produces lots of good judges – you should have seen the line-up in Bangor at the Legal Wales Conference last October!
“Similarly, Welsh litigants at present have access to a large, strong and diverse England and Wales Bar, with a wide range of specialisms. Splitting the jurisdiction would significantly diminish that access.”
As for judges, so for barristers. We all work in both England and Wales.
“The argument has been put forward, by some in the Welsh government and others, that a growing statute book of Welsh laws makes it inevitable a separate Welsh jurisdiction will need to be established at some point in the near future. But the current and foreseeable Welsh statute book is miniscule compared to the centuries of legislation that applies to Wales, both statute and judge-made. And it is likely to remain relatively small long into the future, no matter what the pace of law-making in Cardiff Bay.”
These actually working in the field are grappling with the true fact that Welsh law is NOT “miniscule”. The call has gone out to lawyers to compile Welsh lawbooks. Another call has gone out to make Welsh laws accessible. (You would not believe the panic this causes. The Glasnosts in Wales seem prefer to keep Welsh law hidden away. Wonder why?)

“In any case, lawyers practising in England and Wales are perfectly used to interpreting laws founded on common approaches to statutory constructs and judicial precedents and the time when the volume of Welsh laws poses a problem in terms of their ability to do so effectively is, I would argue, well in the distant future.”
No, Glasnost, its on the doorstep.
“There are also issues of cost. Upwards of £105 million per annum to replicate many of the cross-border justice structures that already exist, including over £80 million to build and run the additional prisons that would be required.”
No, the English Democrat, all credit to him, is right and you are wrong. There is no replication, courts or prisons. The only cost is to move some HM Courts Service bureaucrats to Wales, and fund an online library of Welsh laws. (There used to be one not long ago – can you believe it, they stopped funding it! Hide Welsh law, you don’t know where it will lead!)
“More widely, Wales, like Scotland, benefits from being part of an internal UK market of over 60 million people and from the trade and investment opportunities delivered through the strong UK-brand.”
The UK brand is bust. One of my grandparents was English and I yield to none in my affection for cricket and Shakespeare and the decency of the English – as English Democrat clearly embodies. But some misguided English want us out of the 500 million strong EU trading block, the biggest and best in the world – along with some seriously anti-reality Welsh. Ties with and dependence on England do not allow Wales to flower.

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